“For the first time in history, a federal court has granted the government the power to regulate the press as if it were a public utility. The First Amendment’s protection for the freedom of the press has never been in greater jeopardy.

Make no mistake — this opinion marks a fundamental change in First Amendment law. Until today, the federal courts interpreted the First Amendment as prohibiting the FCC from regulating the transmission of video content and the distribution of newspapers as common carriage. Today’s decision abandons this protection for the freedom of the press and gives government the right to censor the news by imposing restrictions on its distribution.

This decision is a victory for government censorship and a stunning defeat for the free press. It’s now up to the Supreme Court to protect the First Amendment principles that form the foundation of a free and open society.”

Tech Knowledge promotes market-oriented technology policies on behalf of the public interest. Additional information about Tech Knowledge can be found on our website, techknowledge.center.

Today Tech Knowledge filed the following comments at the Federal Communications Commission that address an FCC proposal to force MVPDs to offer unbundled wholesale services in the guise of creating competition in the artificial market for set-top boxes (a proposal dubbed Unlock the Box by FCC Chairman Tom Wheeler). The complete comments as filed can be downloaded in PDF format HERE. (Note, the HTLM version of the comments printed below does not contain the footnotes provided in the PDF version available at the link above and filed at the FCC.)

Executive Summary

The Wholesale Proposal Is an Impermissible Common Carriage Requirement

The FCC’s proposed regulations (the “Wholesale Proposal”) would do more than merely create competition in a market for the “equipment” used to access MVPD services that is artificially separated from the underlying MVPD services themselves; the proposed rules would effectively require MVPDs to provide unbundled, nondiscriminatory access to video programming “information flows” that are an essential part of otherwise fully integrated MVPD services. The avowed purpose of the Wholesale Proposal is to enable third parties to combine MVPD’s unbundled programming with “ancillary features” to provide entirely new, “differentiated” services in competition with MVPDs’ underlying services — the same justification that has traditionally been used to impose resale and other wholesale obligations on common carriers under Title II. The FCC cannot accomplish this result in the guise of promoting competition in an artificially created market for “equipment,” because mandatory wholesale requirements are fundamentally common carriage, and the Communications Act prohibits the FCC from treating MVPDs as common carriers. Read More

The Nebraska Law Review has published an article written by Fred Campbell that explains how the Press Clause of the First Amendment protects the Internet transmission of mass media content from common carrier regulation. The complete article is available HERE.

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CBIT Statement on Oral Arguments in Net Neutrality Case

Haymarket, VA, December 3, 2015 – Fred Campbell, Director of the Center for Boundless Innovation in Technology, released the following statement with respect to the oral arguments on net neutrality that will take place on December 4, 2015, before the Court of Appeals for the D.C. Circuit:

“I expect the FCC will struggle during its court defense of its new net neutrality rules. It’s impossible to square prior court decisions with the unprecedented FCC power grab in the open Internet order under review.

In the previous net neutrality case, the court said it ‘might well hesitate to conclude that Congress intended to grant the Commission’ authority to regulate the Internet with ‘no limiting principle.’ Yet there is no discernible ‘limiting principle’ on the FCC’s interpretation of Title II for the Internet.

The D.C. Circuit court has held that the public interest standard in Title II is ‘essentially one of reasonableness’ with respect to business practices, not absolutes. But the FCC’s new net neutrality rules impose an absolute ban on the business management of ISP networks. According to the FCC’s new net neutrality rules, it is never reasonable for an ISP to manage their networks for ‘business’ reasons. There is no basis in the statute for that sort of hard line.

Even if the FCC wins its statutory arguments, it will very likely lose on constitutional grounds. The law is clear that those who disseminate mass media content have a First Amendment right to exercise the freedom of the press, yet the FCC’s net neutrality rules prohibit any attempt by ISPs to exercise that right. Given that the Supreme Court has never upheld an absolute ban on the exercise of a First Amendment right, it’s highly unlikely that the D.C. Circuit will uphold the FCC’s net neutrality rules.”

The Center for Boundless Innovation in Technology (CBIT) advocates for market oriented government policies to advance innovation in technology. Additional information, blog posts and commentary about CBIT can be found on the CBIT website, cbit.org.

Fred Campbell will address the First Amendment issues in the ongoing case against the FCC’s net neutrality rules during a BloombergBNA webinar tomorrow from 11 am to noon eastern. You can register for the webinar HERE.

Executive Summary

Is watching Netflix on the broadband Internet more like (A) watching cable television or (B) talking on the telephone? Common sense suggests the answer is “A”, the court that overturned the previous open Internet rules[1] chose “A”,[2] and the First Amendment demands it. The Federal Communications Commission (“FCC”) nevertheless chose “B” in the Second Internet Order:[3] It concluded the Internet is the functional equivalent of the public switched telephone network and is subject to the common carrier regulations in Title II of the Communications Act of 1934.

If the FCC had admitted the Internet offers communications capabilities that are functionally equivalent to the printing press, mail carriage, newspaper publishing, over-the-air broadcasting, and cable television combined, it would have been too obvious that classifying broadband Internet service providers (ISPs) as common carriers is unconstitutional. Like all other means of disseminating mass communications, broadband Internet access is a part of the “press” that the First Amendment protects from common carriage regulation. Read More